The Austin Court of Appeals has upheld a Bell County trial court order dismissing a wrongful death case on forum non conveniens grounds.
Shirley McDonald v. Transco, Inc. and McLane Company, Inc. (No. 03-22-00689-CV; May 31, 2024) arose from a 2021 collision between a passenger vehicle and a tractor-trailer in Florida. The driver of the vehicle, a Florida resident, was killed in the crash. Decedent’s daughter brought a wrongful death action against Transco and McLane, who employed the truck driver, in a Florida court. Decedent’s mother, McDonald, a resident of Mississippi, also sued McLane in Bell County, alleging negligent operation by the driver, vicarious liability, and negligent failure to train. Defendants moved to dismiss the Bell County case, alleging that Florida law applied and that Plaintiff lacked standing and capacity to sue in Texas. They further moved to dismiss on forum non conveniens grounds. The trial court dismissed McDonald’s claims with prejudice for lack of standing and capacity or, in the alternative, forum non conveniens.
In an opinion by Justice Triana, the court of appeals affirmed dismissal for forum non conveniens. The court first considered whether Plaintiff had standing and capacity to sue in Texas under § 71.031(a), CPRC. That statute authorizes a plaintiff to bring a wrongful death action for an out-of-state death in Texas courts if Texas law gives the plaintiff a right to maintain an action here. In this case, decedent’s mother had a right to maintain an action for the death of her son under Texas law, although Florida law limits standing and capacity to sue to the decedent’s personal representative (decedent’s daughter). Defendants argued that the trial court properly conducted a choice-of-law analysis to determine that Plaintiff lacked standing and capacity in Texas because she was not authorized to maintain the action under Florida law. The court of appeals, however, held that a choice-of-law analysis was not required because under the Texas wrongful death statute, standing and capacity are procedural, not substantive, law issues. Consequently, the trial court erred in treating the issue as one of substantive law for purposes of a choice-of-law analysis.
Turning to the forum non conveniens question, the court looked to the statutory factors prescribed by § 71.051(b), CPRC. First, the court determined that an alternative forum existed. Defendants consented to the exercise of personal jurisdiction by the Florida court. Additionally, because the alleged negligence occurred in Florida, Defendants were subject to Florida’s long-arm statute. The first factor thus weighed in favor of dismissal. As to the second factor, whether Florida would provide an adequate remedy, Plaintiff argued that because she was not decedent’s personal representative for purposes of the Florida wrongful death statute and could not maintain the action in Florida herself, she had no remedy in Florida. The court disagreed, observing that the trial court found that Plaintiff “was aware of the Florida litigation but chose not to coordinate with the personal representative or seek relief in Florida and that ‘any difficulties that [Plaintiff] may experience from refiling in Florida would not result from [Defendants’] actions but from [Plaintiff’s] strategic choices.’” In fact, Plaintiff had an adequate remedy for survivor damages in Florida by way of the personal representative, who represented the survivors as a group. That she decided not to avail herself of that remedy was entirely up to her, but it did not change the fact that she could have proceeded in Florida. The second factor thus weighed in favor of dismissal.
Next, the court considered whether maintaining the action in Texas would work a substantial injustice to Defendants. In general, “a substantial injustice is worked upon a defendant litigating in Texas when the vast majority of the witnesses are not subject to compulsory process in Texas,” even of those witnesses are otherwise available for deposition (citations omitted). The trial court found that the most important witnesses, including the McLane employees who operated the truck, the responding law enforcement and medical personnel, and decedent’s health care providers, were all beyond the court’s subpoena power. Additionally, the claims examiner and counsel who investigated the accident for McLane and McLane’s insurance carriers resided in Maryland and Alabama, while the towing operator lived in Florida. Given the great predominance of out-of-state witnesses who could be compelled to appear in a Texas court, the trial court properly determined that the third factor weighed in favor of dismissal. By the same token, the trial court found that the fourth factor, whether Florida could exercise jurisdiction over Defendants, was met.
As to the the fifth factor, the court agreed with the trial court that the balance of private and public interests overwhelmingly favored Florida and “that it would be ‘fundamentally unfair to burden the people of Texas with the cost of providing [a] court[] to hear’ this case that has no significant connection to Texas” (citation omitted). Finally, the court determined that dismissing the Texas suit would not result in unreasonable duplication or proliferation of litigation. Plaintiff argued that if her Texas case were dismissed, she would have to file another lawsuit in Florida against the personal representative for a share of the settlement proceeds. But, as the trial court pointed out, Plaintiff presented no evidence that she demanded her share from the personal representative and was refused. Defendants argued further that consolidation of all claims in the Florida lawsuit reduced duplication because it permitted resolution of the entire case in one trial. Factor six went to Defendants as well, and the court affirmed the trial court’s grant of Defendants’ forum non conveniens motion.
